At the Sports Law Blog, Geoffrey Rapp discusses an interesting case - the Big 10's controversial decision to dismiss a referee, James Filson, who became blind in one eye due to injury. For dumping the one-eyed ref, the Big 10 is being sued, natch!
While some facts are in dispute, Filson apparently refereed Big 10 football games since 1992, and has been wearing a prosthetic eye since 2000. Professor Rapp notes the following interesting feature of the case:
Filson's "rating" as an official actually improved after his injury. That would seem to undercut the conference's ability to claim that Filson could not be reasonably accommodated. (How, exactly, Filson managed to improve his rating after his injury is an interesting question. Perhaps, sensitive to his potential limitations, he concentrated extra hard on making the right calls after his injury. But if extra concentration could improve his rating, what does that say about his pre-injury level of effort?).
As Rapp states, the legal ground for the Big 10 is weakened by Filson's performance improvement. Indeed, he was chosen, presumably on merit, to work an Orange Bowl during his one-eyed period.
But I would take Rapp's observation one step further. Arguably, Filson has been optimally responding to incentives all along. Thus, his performance improvement, while impaired, suggests that the incentive system used in the Big 10 produced ... [can I say this gently? no] ... a group of slacker refs. [Note to Big 10 refs: you are many first downs ahead of your ACC brethren, so please save your venom.]
Systematic review of referee performance is now commonplace in college athletics. These procedures, combined with proper incentives, should improve referee performance, as I argued earlier this week in "Refereekonomics." Arguably, they have. If so, an important but undisclosed fact in the Filson case is his performance rating relative to other referees in the Big 10, as the increased use of review procedures may have induced a league-wide increase in performance.